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Mystery, Paranoia, Confusion: You Won't Believe What's Happening at Guantanamo

A mystery is unfolding that highlights the peculiarities of the military commission system.

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Brig. Gen. Mark Martins, the lead prosecutor and primary advocate for the legitimacy of the commissions, constantly extols the openness of the proceedings and the fairness of the process. He's in an unenviable position, and this week only made his job more difficult.

Paranoia

The procedures for military commissions are unclear, especially when compared with civilian court. In response to a question I asked regarding whether or not the case could effectively be tried in a regular courtroom in the United States, Gen. Martins reiterated that Congress had ruled GTMO detainees couldn't be transferred to US soil. “The case is in this jurisdiction, this is the only place it's gonna be tried,” he said at a press conference at the beginning of the week. “That doesn't mean it's gonna be unfair. It urges us on to make [military commissions] laudable, fair, and accountable.”

Despite Gen. Martins' reassurances, the five defense teams are united in their criticisms of the entire system as fundamentally flawed, and possibly susceptible to outside influence. “Who is the master of puppets?” Commander Walter Ruiz asked at the end of the week in a wry homage to Metallica, suggesting that there are hidden players pulling the strings of the case. Ruiz also said he believed the killing of the media feed on Monday was in direct violation of the rules governing closure of the court. The judge's order removing the outside entity's ability to kill the feed is further evidence for Ruiz's claim.

The defense is also united by a troubling concern that goes to the very heart our our idea of justice: they claim to have reason to suspect their private conversations among themselves and with their clients may have been secretly recorded. Defense attorney David Nevin introduced an emergency motion on Thursday morning to abate – or halt – the proceedings until the question of whether or not attorney/client privilege has been compromised has been adequately explained and resolved. Judge Pohl saw the importance of the motion, and moved it to the top of the pile.

All the tables in the courtroom have desktop microphones with mute buttons on them. On the final day of the proceedings, defense attorneys James Connell and Lt. Col. Sterling Thomas both bent their microphones away from them, pointing them at the floor. “The question of who listens to microphones from the defense tables is still very much an open question,” Connell said, regarding the motion defense attorney Nevin filed on Thursday morning. A note on the courtroom door reads: “Assume microphones are live at all times.” During a brief recess on Thursday morning, the five defense teams huddled against the wall, away from their desks for fear of secret monitoring.

If it is true that defense attorneys' private conversations, among themselves or with their clients, have been surreptitiously recorded it would a catastrophic blow to a system who's fairness is constantly under scrutiny. Even if that information hasn't been provided to the prosecution – Gen. Martins has stated unequivocally that his team has not been given any privileged information – the ramifications would be hard to overstate. “If attorney client privileges are being violated, and it's not clear that is the case, it would be a serious violation of one of the most important fundamental protections provided in the US criminal justice system and would have serious implications for the validity of these proceedings,” Laura Pitter of Human Rights Watch wrote in an email.

The first evening we were there, security officials gave reporters a tour of the Expeditionary Legal Complex – the courtroom and nearby holding cells. There hadn't been a tour in years, as near as I could tell. DoD officials repeatedly stressed that they were trying to make the GTMO experience more transparent; this tour was one example of that.

 
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